商业特许经营外部民事责任探析

商业特许经营外部法律责任的认定与承担是一个复杂的问题,它既应符合特许经营的本质特性,同时也应适应民事责任承担的法理基础。目前在国内外虽有外部法律责任承担的诸种法案与观点,但仍存有不少缺失。比较分析相关学说,同时借鉴英美法上关于特许人责任的理论,特许经营外部法律责任形态应视不同情形而区别对待,总体上以受许人承担为主要原则,以特许人直接承担、代负承担为少数情形,以特许人连带承担为例外情形。

An Analysis of Outer Civil Liability of Franchising

How to judge and bear the outer liability of Franchising is complicated. It should not only have the nature of franchi- sing, but also conform to the legal foundation of civil liability. There exist different theories on the outer liability bearing, yet they still suffer from some deficiencies. Based on a comparative study of relevant theories, as well as the theory on franchisers＇ liability in Anglo-American legal system, it is argued that in most cases the Franchisee should bear the liability, in a few cases the Franchiser bearing the liability and only in exceptional cases both of them having to take joint liability.